With the recent change in leadership, there is speculation that Australia’s asylum seeker policy could become even tougher. This raises serious questions about Australia’s commitment to the international protection of refugees writes Daniela Carlucci.

For those who’ve come across the seas, we’ve boundless plains to share: unless, of course, you are an asylum seeker.

This seems to be the message of the new Rudd government, like the one before it, and of the Coalition Opposition. There is now speculation that Labor might even be toughening its asylum seeker policy before the upcoming federal election. During his first stint as prime minister, PM Kevin Rudd dismantled the Howard government’s Pacific Solution, which exposed the party to allegations it was responsible for an increase in boat arrivals leading to declining support in Western Australia and western Sydney especially.

Foreign Minister Bob Carr

Since his return to leadership, both Mr Rudd and Foreign Affairs Minister Bob Carr have said that many of the people arriving in Australia by boat are economic migrants, not genuine refugees.

Senator Carr has called for a tougher assessment of refugee claims and said that his department is preparing evidence to persuade the immigration tribunals to reject illegitimate applications.

But critics argue that a tougher determination process extends what is an already harsh policy.

Last month, the senate passed an amendment to the Migration Act 1958 which excised the Australian mainland from the migration zone, meaning all irregular maritime arrivals will be subject to offshore processing. Previously, only those arriving at excised offshore territories—the Ashmore and Cartier Islands, Cocos/Keeling Islands and Christmas Island—would be sent to Nauru or Manus Island. Now, asylum claims will only be processed in Australia with special permission from the Minister for Immigration and Citizenship Brendan O’Connor.

The bill, which is almost identical to the one introduced by the Howard government in 2006, was introduced into the parliament by former Minister for Immigration and Citizenship Chris Bowen last October. Backed by Labor and the Opposition, it is intended to deter asylum seekers from making the dangerous boat journey to Australia by giving them equal status regardless of where they arrive.

Not surprisingly, the bill received severe backlash, with many advocacy groups accusing it of being a direct contravention of the 1951 Refugee Convention to which Australia is a signatory. The Greens were also strongly opposed to it.

“This expands the already existing two-tiered system that is in direct contravention of the Refugee Convention, which clearly identifies that we should not be discriminating against people and their right to protection, care and safety based on their mode of arrival,” Greens Senator Sarah Hanson-Young told the Parliament.

But Labor declared it was simply acting on the advice of the Expert Panel on Asylum Seekers led by former chief of Australia’s defence force Angus Houston. Commissioned by former Prime Minister Julia Gillard and Minister for Immigration and Citizenship Chris Bowen last year, the Panel was asked to provide a report on the best ways to prevent asylum seekers from travelling to Australia by boat. Excising Australia’s mainland was one of their recommendations.

“The panel recommends that the Migration Act 1958 be amended so that arrival anywhere on Australia by irregular maritime means will not provide individuals with a different lawful status than those who arrive in an excised offshore place,” the report states.

Still, the Refugee Council of Australia (RCOA) believes the excision policy violates the Convention in several respects. By transferring asylum seekers to territories where human rights protections cannot be assured, as well as subjecting them to a less robust and transparent procedure of status determination, it directly violates Article 31 and Article 33. The RCOA also believes that the policy invests too much power in the Minister for Immigration and Citizenship.

So are there consequences for breaching the Convention?

United Nations High Commissioner for Refugees (UNHCR) spokesman Ben Farrell said there is no formal complaints or sanctions mechanism under the Convention, which means it cannot force governments to adopt policies ensuring the protection of refugees.Instead, the UNHCR’s role is to liaise with governments on best practice and monitor the implementation of their obligations.

At most, Australia faces a slap on the wrist.

But legalities aside, the decision to excise the entire mainland raises serious questions about Australia’s moral fibre. Whether or not there are sanctions in place, this legislation undoubtedly violates the spirit of the Convention, which is to protect those fleeing from persecution. Instead, Australia is greeting them with the very thing they fled from.

Furthermore, there is evidence to suggest that deterrence policies are ineffective. Since reopening the offshore processing centres last year, there have been over 15,000 irregular maritime arrivals. The RCOA said the government must move toward a more sustainable solution.

“The excision policy does nothing to address the central factor which compels asylum seekers to undertake dangerous boat journeys in the first place: that is, the lack of protection afforded to refugees and asylum seekers across much of Asia-Pacific,” an RCOA spokesman said.

The RCOA also warns that this legislation sets a poor example for other countries when regional leadership is needed.

“It will be difficult for Australia to encourage other countries in the region to lift standards of protection for refugees and asylum seekers while simultaneously lowering its own. Paradoxically, rather than reducing the risk of dangerous boat journeys, the Bill is likely to compound the factors which drive asylum seekers to undertake these journeys.”

Manus Island facilities far from ideal

What’s more, the UNHCR recently visited the offshore processing centres to assess whether they were up to international protection standards and what it found was less than satisfactory. It reported a lack of adequate procedures for the transfer, treatment and processing of asylum seekers, as well as harsh conditions including extreme humidity and torrential rain. There were also reports of hunger strikes and asylum seekers suffering from serious mental health issues, often leading to self-harm and suicide.

In an attempt to minimise these negative effects, the Greens tried unsuccessfully to move three amendments to the bill.

The first was to allow the media access to the offshore processing centres since it is currently severely limited. Four Corners only recently exposed the harsh conditions in both Nauru and Manus Island by using smuggled cameras. Senator Hanson-Young said it was important for Australians to see the government’s mistreatment of asylum seekers that is costing them over $7.5 billion.

The second was to allow the Australian Human Rights Commission (AHRC) to inspect the offshore processing centres. Currently, president of the AHRC Gillian Triggs only has access to detention centres on the mainland. Told that she has no jurisdiction outside Australia, she is yet to see either Nauru or Manus Island.

Finally, the third amendment was to remove children and their families from Manus Island where conditions are said to be wholly unfit for them. For years, concerns have been raised about the detention of children who are believed to be particularly vulnerable to physical and mental health risks. In fact, the Australian Medical Association has likened the detention of children to institutionalised child abuse.

Mr Paris Aristotle, a member of the Expert Panel on Asylum Seekers, has also spoken out against the detention of children. He said that in addition to their recommendations, the Panel also put forward a number of compulsory safeguards to protect asylum seekers. He said that Manus Island should be closed if these safeguards cannot be put in place.

However, a group of 70 asylum seekers including families was recently flown from Papua New Guinea to Christmas Island. Although Minister for Immigration and Citizenship Brendan O’Connor told Insiders that there has been no change to the government’s policy on offshore processing, asylum seeker advocates believe families will continue to be removed.

But while they may have won the battle, the war is still being fought. The Greens have said that they will attempt to repeal the new excision law.

“The excision of the Australian mainland from its own migration zone is a deeply shameful piece of legislation. It was a hysterical response to what is a serious humanitarian issue in our region. The Greens will continue to stand up for the rights of very vulnerable people throughout the race to the bottom that Labor and Tony Abbott have dragged this Parliament into,” said Senator Hanson-Young.

Prime Minister Kevin Rudd

The RCOA is advocating for the elimination of Australia’s excision policy altogether, saying the international system of asylum would collapse if other countries followed suit.

“If this approach to policy-making was adopted by all countries in the region, the consequences for people seeking protection would be disastrous,” an RCOA spokesman said.

“RCOA has consistently maintained that the most sustainable and effective strategy for addressing the complex protection issues across the region, including dangerous boat journeys to Australia, is the development of a sustainable and constructive regional framework for cooperation on refugee protection.”

Mr Rudd will discuss economic refugees with Indonesian President Susilo Bambang Yudhoyono in Jakarta next week. However, he said that any policy announcements will be made after discussions with his new cabinet. In the meantime, perhaps the government should also consider amending our national anthem to reflect the current state of affairs for those seeking asylum in Australia.